31 Miss. 664 | Miss. | 1856
delivered the opinion of the court.
This was an action brought by the defendant in error to recover the money due on a promissory note made by the plaintiff in error, as surety for one Blackman, due twelve months after the 10th December, 1851, for $1060.
To these pleas, the plaintiff demurred, and the demurrer was sustained, and judgment rendered for the plaintiff; and thereupon this writ of error is prosecuted.
The only questions for consideration are those arising upon the sufficiency of the pleas.
Upon the first and second pleas, two points are raised. First. Whether a mere gratuitous promise by a creditor to a principal debtor to forbear suit for any stated time, if carried out, will discharge a surety. Second. Whether an agreement by the creditor with the principal, in consideration of the payment of a part of the debt after it has become due, that he will extend the time of payment to a future stipulated period without the consent of the surety, will discharge him.
The first proposition cannot be the subject of any doubt, and we are aware of no case in which it has been held that a surety would be discharged under such circumstances. All the authorities hold, that in order to discharge the surety, there must be a binding contract between the creditor and the principal, founded on a valuable legal consideration, by which the creditor is precluded
And for the same reason, the surety will not be discharged under the circumstances of. the second proposition. For the contract for forbearance cannot be valid as such, unless it be founded on a new consideration, independent of that of the original contract, upon some benefit received or secured to the creditor which the principal was not bound to render under the original contract, such as the payment of interest, or a. part of the debt before it was due, the giving of additional security or the like, as a consideration for further indulgence. But a partial payment, made after the debt has become due, cannot be a new and independent consideration. It is merely paying a part of what the debtor was already bound to pay in full. No benefit is received by the creditor, but what he was entitled to under the original contract, and the debtor has parted with nothing but what he was already bound to pay. It cannot therefore with any propriety be said that such partial payment would be a sufficient legal consideration to render the promise of further indulgence a binding contract, debarring the creditor of the legal right of suing upon the original contract, regardless of such agreement. Montgomery v. Dillingham, 3 S. & M. 647; Newell v. Hamer, 4 How. 684.
The case of Rupert v. Grant, 6 S. & M. 433, is relied upon as conflicting with this view of the subject. But the point of the sufficiency of the consideration, founded on a partial payment of a debt due, does not appear to have been specially considered in that case; and it is manifest that the rule contended to be there sanctioned cannot be sustained upon principle or authority, consequently we cannot give it our sanction.
The third plea was insufficient upon several grounds. First. It does not show what rate of increased interest Blackman agreed to pay in consideration of the indulgence, or, whether it was paid or
Let tbe judgment be aflSrmed.